Saturday, July 24, 2010

Mikey as Party-list Rep?

The divided decision of the Comelec on whether Mikey Arroyo qualifies as a party-list representative is indication that some Commissioners have chosen to ignore the law on the subject.The Supreme Court will have to send them back to school.

The Supreme Court already dealt with this in the 2001 case of Ang Bagong Bayani.Although that decision was primarily about the qualities of the party-list organization and not directly about party-list representatives, the Court nevertheless manifested its thinking about the representatives themselves.

We must begin with the basic constitutional text on party-list.It says: “For three consecutive terms after the ratification of this Constitution, one-half of the seats allocated to party-list representatives shall be filled, as provided by law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by law, except the religious sector.”

Note that the text says that the party-list representatives shall be chosen “by selection or election from the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by law, except the religious sector.” But the Court also noted that the provision was not self-executory considering that the law was interspersed with phrases like ‘in accordance with law’ or ‘as may be provided by law’ and that therefore “it was thus up to Congress to sculpt in granite the lofty objective of the Constitution.”

How did Congress sculpt the image of the party-list representative?Prefatorily R.A. 7941, the Party-List Law, said that the system should “enable Filipino citizens belonging to marginalized and underrepresented sectors, organizations and parties, and who lack well-defined political constituencies but who could contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole, to become members of the House of Representatives.”From this one may easily deduce that Filipino citizens who are and have been prominent members of well established political parties would be excluded.

For this reason the 2001 decision already concluded that party-list representativesmust be Filipino citizens “1. who belong to marginalized and underrepresented sectors, organizations and parties; and2. who lack well-defined constituencies; but3. who could contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole.”The Court emphasized the key words “marginalized and underrepresented,” and “lack [of] well-defined constituencies.”

When Congress finally enumerated the qualifications of a party-list representative it said in Section 9 of R.A. 7941: “No person shall be nominated as party-list representative unless he is a natural-born citizen of the Philippines, a registered voter, a resident of the Philippines for a period of not less than one (1) year immediately preceding the day of the election, able to read and write, a bona fide member of the party or organization which he seeks to represent for at least ninety (90) days preceding the day of the election, and is at least twenty-five (25) years of age on the day of the election.”

But what does being a bona fide member of a party-list organization mean? The meaning cannot be a departure from the constitutional provision which says that he must be elected “from the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by law, except the religious sector.” Or, as the Supreme Court said in 2001, he must be chosen from among those “1. who belong to marginalized and underrepresented sectors, organizations and parties; and2. who lack well-defined constituencies; but3. who could contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole.”

Last year the Supreme Court reiterated this in Banat v. Comelec when it said that “it is not necessary that the party-list organization’s nominee ‘wallow in poverty, destitution and infirmity’ as there is no financial status required in the law. It is enough that the nominee of the sectoral party/organization/coalition belongs to the marginalized and underrepresented sectors, that is, if the nominee represents the fisherfolk, he or she must be a fisherfolk, or if the nominee represents the senior citizens, he or she must be a senior citizen.”

It is sometimes argued that it would be illogical to exclude members of elite groups because those who belong to the marginalized sectors might not have the capacity to “contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole.”Such argument adds insult to injury.

Finally, to quote the 2001 Court decision once more: “In the end, the role of the Comelec is to see to it that only those Filipinos who are ‘marginalized and underrepresented’ become members of Congress under the party-list system, Filipino-style.”How could some Comelec Commissionersmiss this if not deliberately?And what should an enlightened Comelec do with a party-list organization which by its choice of nomineesseeksto prostitute the system?